Dispute Settlement Counsel by Michael Zeytoonian.
What do you want?
It’s a pretty simple question, really. It reminds me of what Noah (Ryan Gosling) repeatedly asked Allie (Rachel McAdams), his love interest in The Notebook. She kept hemming and hawing as to how difficult her situation was, having to choose between two good men, and that there was no easy answer. But he stayed laser focused on the central question:
What do you want?
It’s one of the first questions a lawyer should be asking a client in an initial meeting or as part of a more thorough process assessment. What is the potential client’s goal? Oddly, most lawyers in their initial meeting or consultation never ask this key question.
For people involved in a dispute, the sooner you answer this question with clarity, the better off you will be in the long run. That clear answer is crucial to setting the course for the best way to approach your dispute. It will also decide if you will reach your goal at all, and if you do, whether it will be as a direct and intended result of the dispute resolution process you choose, or as a lucky by-product of a process designed and intended to reach some other goal. If the lawyer you are consulting with doesn’t ask you this question and get a really clear answer from you, run – don’t walk – and find another lawyer that asks you what you want.
If your goal is to win your dispute, this automatically also means that to achieve your goal, the other side must lose. It is a zero-sum game. Winning requires declaring war and taking sides. It sets the lawyers in motion in a competition to see who can beat the other one every procedural and substantive step of the way, over the next two to five years. Winning is a goal best served by a no compromise, take no prisoners, win at all costs approach. Think Keanu Reeves in The Devil’s Advocate: “I win; I win!!”
People who want to win usually also want the other side to lose. Even if they don’t want the other side to lose, that is the result when one side wins. This goal opens the door of the adversarial process. This is not the land of “everybody gets a trophy.” The law’s adversarial civil procedure is not designed to achieve a win-win result. It is designed for two or more parties involved in a dispute to fight to determine who is right and who is wrong, who is liable for what happened, who must pay the other and how much. This is the litigation landscape. It is what we expect of litigators. In the memorable words of Terrence Mann (James Earl Jones) in Field of Dreams when he was asked if he was going to write about what he saw on the baseball field and beyond it: “It’s what I do.”
Surgeons perform surgery. Writers write. Litigators litigate. They want to try cases. They want to win. It’s what they do. If you have some other expectation – if you want them to utilize circle process for the parties to talk respectfully with each other, or guide their clients through a structured collaborative negotiation – it is an unreasonable and misplaced expectation. When I was a litigator, I wanted to try cases. Settling or negotiating were neither my marching orders, nor my goal, nor my interest. Litigators are not called to be problem solvers; they are fighters. Their goal is to win. If you hire one, that should be your goal too.
If your goal is fixing the problem, then the adversarial path directed toward winning is not likely to take you where you want to go and certainly not as quickly as you want to get there. This is especially true if solving the problem calls for maintaining healthy relationships between the parties in the dispute, or restoring the situation to what it was before the dispute arose, or better yet, transforming the situation to something better. Most of the time, the adversarial approach to winning destroys any chance of restoration or using the dispute as an opportunity to improve things. It’s difficult if not impossible to preserve or repair relationships between the parties if the means they choose to resolve their dispute is to escalate it to a pitched battle.
There are people within the legal profession that are problem solvers. They guide their clients through a well-designed, structured negotiation process. They are called counselors at law, mediators, collaborative lawyers and settlement counsel. Their job is not to fight and their goal is not to win at the expense of the other side or at any cost. They are called to be problem solvers, facilitators and legal guides, walking alongside their clients and helping them reach their goals. They help clients fix legal problems, not make them worse, and sometimes transform the situation into something better than it was before the dispute.
If you want to fix what needs to be repaired and your hope is to restore things to the good circumstances there existed before the dispute, or to improve them further, and you can view the dispute as an opportunity to do so, you need to tell your lawyer that is what you want.. You need to make sure the lawyers that you and the other party in the dispute hire to work with you are the right types of lawyers for achieving the results you want. It might feel like you want a fighter, emotionally. But what you need is to find lawyers who are trained and experienced as problem solvers. It’s what they do.
What do you want? It’s a simple question. Responding to it correctly is the key to a successful outcome. Skipping it leads you down a path you should never travel on, to a place you don’t want to go.
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